93 Ala. 338 | Ala. | 1890
— This is an action by Scholze against Lesser, on a promissory note. The paper is declared on in the first and second counts of the complaint as having been, and it is set out in the third count as being, executed on April 25th, 1884. Five pleas were interposed. Of these, three set up payment, want of consideration, and failure of consideration, respectively. No question relating to these defenses is reserved. The two remaining pleas aver, respectively, ‘-that the date of the instrument sued on has been altered without the knowledge or consent of the makers, since the said instru
But plaintiff’s demurrers to these pleas, based on the infirmity we have been considering, were overruled, and issue taken and trial had upon them. On this appeal, taken by the defendant, they must be considered and treated as presenting' the defense which they were intended to present as fully and efficaciously as if they had been duly verified. — Tuskaloosa Cotton Seed Oil Co. v. Perry, 85 Ala. 158.
In the further consideration of the case, it becomes important to note that neither of the pleas in question denies or puts in issue the fact that the paper actually bore date as of April 25th, 1884, as laid in the complaint, but, on the contrary, they assume, and in effect admit that it bears that date, and make this assumption the predicate for the averment of altera
It is manifest that this preliminary decision of the court could not have had any bearing on the question which the pleadings had submitted to the jury. That was, as we have seen, an entirely different matter. The paper itself bore evidence of alteration. The defendant asserted, and the plaintiff admitted, that the date as originally written had been changed. There was no controversy as to'the fact of alteration. But the presumption of law was, in the absence of any ground of suspicion to the contrary, that the alteration had been made prior to, or contemporaneously with, execution. — Martin v. King, 72 Ala. 354; Barclift v. Treece, 77 Ala. 528. And the real contest was as to the time, with respect to execution, when the alteration was made. It is very clear that the solution of this question did not depend upon, and could not be aided by, any conclusion of the jury as to the date borne by the instrument at the time of the trial. Whether the date so borne was April 25th, or April 15th, the paper was not vitiated by a change from the former to the latter, or vice versa, or from any other date to either of these, unless the jury had further found that such change had been made after execution, and without authority.. The charge requested by the defendant directed a verdict in his favor, if the jury found that the instrument bore date as of April 15th. This was to inject an issue— an immaterial one — of which there was no hint in the pleadings, into the case by instructions. The charges were well refused.
There is nothing in the position — based on the failure to fill certain blanks left in the printed waiver of exemptions, which is a part of the paper signed, for the insertion of personal pronouns — that the instrument sued on does not contain a waiver of exemptions. Every part of the paper must be given operation and effect; and missing words necessary to this end, suggested by those which appear, may be supplied.
We find no error in the record, and the judgment must be affirmed.